UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 07-4678

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

GARY DEAN WHITE, a/k/a G,

Defendant - Appellant.

Appeal from the United States District Court for the Western

District of North Carolina, at Charlotte. Frank D. Whitney,

District Judge. (3:03-cr-00181-FDW)

Submitted: May 2, 2008 Decided: June 6, 2008

Before NIEMEYER, MOTZ, and KING, Circuit Judges.

Affirmed by unpublished per curiam opinion.

William R. Terpening, ANDERSON TERPENING, PLLC, Charlotte, North

Carolina, for Appellant. Gretchen C. F. Shappert, United States

Attorney, Adam Morris, Assistant United States Attorney, Charlotte,

North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM: 

Gary Dean White appeals the imposition of a life sentence

following his guilty plea pursuant to a written plea agreement to

one count of conspiracy to possess with intent to distribute

cocaine and cocaine base, in violation of 21 U.S.C. §§ 841, 846,

851 (2000). On appeal, he challenges the district court’s finding

that the Government did not abuse its discretion in denying him a

second opportunity to provide substantial assistance following

violation of the conditions of his bond, the district court’s grant

of the Government’s motion to quash White’s subpoenas, and the

district court’s denial of White’s motion to withdraw his guilty

plea. We affirm.

The record reflects that White recognized explicitly in

the plea agreement, as well as during his Fed. R. Crim. P. 11

proceeding, that he was subject to a mandatory life sentence for

his crime. His plea agreement contained several terms relating to

his desire to cooperate with the Government, in exchange for a

reduced sentence in the form of a government motion for downward

departure for substantial assistance under U.S.S.G. § 5K1.1 (2006)

and 18 U.S.C. § 3553(e) (2000). Specifically, he agreed to

cooperate and provide truthful information. He represented that he

would “not violate any federal, state, or local law, or any order

of any court, including any conditions of pretrial, pre-sentence,

or post-sentence release.” White further represented that he
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“underst[ood] that any breach of [the] agreement . . . [would]

allow the government, in its sole discretion, to withdraw from its

obligations under [the] Plea Agreement.” (emphasis added). White

also specifically waived his right to attack or appeal the United

States’ exercise of its discretion, as well as his right to

withdraw his guilty plea. White argues no error with regard to his

Rule 11 proceeding and the acceptance of his plea. 

Nine months after being released to cooperate, and

following his involvement in two controlled buys and assistance

which led to the arrest of an individual on drug trafficking

charges, White violated his plea agreement and the law. White was

arrested on July 18, 2005, for possession and possession with

intent to distribute crack cocaine, clear violations of several

conditions of his pretrial release. In addition, White failed to

immediately advise authorities of any change in his address or

telephone number, and was considered by the probation office to

have been an absconder from supervision from June 2005 until August

22, 2005, in further violation of his pretrial release. Finally,

he violated his pretrial release conditions because he failed to

report to his supervising U.S. Pretrial Services Officer as

instructed on two separate occasions. Despite his arrest warrant,

White did not turn himself in; he was taken into custody in January

2006 when he was rearrested on another charge. 
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Following his rearrest, White’s lawyer arranged a meeting

with non-federal law enforcement officers to offer potential

assistance. White and his attorney assert the officers were

receptive. The United States Attorney declined to give White a

“second chance” at avoiding a life sentence. 

At this juncture, White moved to withdraw his guilty plea

on the grounds that he was “unreasonably depriv[ed] of his ability

to continue providing substantial assistance.” At the hearing,

White testified that he had essentially been “set up” by a dealer

who became aware that he was cooperating with authorities. He

admitted that he had violated his bond, and that he had made a

mistake, but again promised to cooperate, claiming to have “learned

[his] lesson.” White put on evidence that he had moved in with his

father, and did not have a telephone. At the hearing on the

motion, White’s attorney reaffirmed that the plea itself was

“knowing and voluntary.” Following the magistrate judge’s

recommendation to deny the motion to withdraw, White’s counsel

subpoenaed the U.S. Attorney’s office and the probation office for

comprehensive records pertaining to other bond violators, in an

effort to establish that the Government’s decision to deny White a

second chance at cooperation was irrational. The Government moved

to quash the subpoenas. 

The district court conducted a hearing on both the

subpoena issue and White’s request for a de novo hearing on his
1

See United States v. Moore, 931 F.2d 245 (4th Cir. 1991).

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motion to withdraw his plea. Following White’s attorney’s

acknowledgment that the records he sought by subpoena were public

but that the subpoena would save him money and time in researching

the information, the district court granted the Government’s motion

to quash. The district court then considered White’s motion to

withdraw his plea. While White claimed to have found eight

instances of disparate treatment in the information he had found

relative to bond violators being given a second chance at

cooperating to achieve a § 5K1.1 reduction, he did agree with the

district court that the majority of defendants who violate bond are

sentenced, as he ultimately was, to their statutorily imposed

sentences. White’s position was that any inconsistent treatment

among defendants deprived him of his rights and constituted grounds

to support the withdrawal of his plea. 

In denying White’s motion to withdraw, the district court

addressed each of the Moore1 factors, and found that White’s plea

was knowing and voluntary, that White had not credibly asserted his

innocence, and expressly adopted the magistrate judge’s uncontested

report as to the other factors. The district court found no bad

faith, unconstitutional motive, or irrational act by the

Government, and determined that White indisputably had violated and

ignored the procedure for cooperation. White timely appealed from

the imposition of the statutorily mandated life sentence.
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White first challenges the district court’s finding that

the Government did not abuse its discretion in denying White a

second opportunity to provide substantial assistance following his

violation of the conditions of his bond. He contends both that the

Government abused its discretion, and that the district court erred

in failing to shift the burden to the Government to demonstrate any

rational relationship to a legitimate governmental purpose in

denying White a second opportunity to cooperate. 

The decision to file a § 5K1.1 motion rests solely within

the government’s discretion. United States v. Butler, 272 F.3d

683, 686 (4th Cir. 2001). Therefore, unless the government has

obligated itself in a plea agreement to file a substantial

assistance motion, its refusal to do so is not reviewable unless it

was based on an unconstitutional motive such as race or religious

animus, or not rationally related to a legitimate government end.

Wade v. United States, 504 U.S. 181, 185-87 (1992); Butler, 272

F.3d at 686. 

Here, White’s plea agreement reflects unequivocally that

the Government retained sole discretion in the determination of

whether to file a § 5K1.1 motion on White’s behalf, and this

discretion included the right not to seek a sentence reduction for

White’s failure to cooperate. The Government never relinquished

this discretion. The ample evidence of White’s breaches of his

agreement as to cooperation, including White’s admissions of his
2

While White relies on United States v. Wilson, 390 F.3d 1003

(7th Cir. 2004), the Government in Wilson admitted at sentencing

that the defendant cooperated and that his assistance was

substantial enough to qualify for a downward departure. Here, in

contrast, White cooperated only partially before breaching his

obligations, his promises of future helpfulness were self-serving

and vague, and the United States Attorney has indicated that his

assistance was not substantial. Plus, the defendant in Wilson did

not commit a crime while attempting to cooperate, as White did in

this case.

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failures, provides a sufficient basis for the Government’s refusal

to allow further opportunities for White to cooperate.

Moreover, we find White’s argument of Governmental

irrationality or caprice to be unpersuasive. There is no evidence

that the Government acted in bad faith or with an improper motive.

The Government simply concluded that White had breached one too

many provisions of his agreement. While White asserts that the

eight examples allegedly supporting his position are sufficient to

establish irrationality, the district court properly held that,

even assuming that White’s examples illustrated that eight

individuals were treated differently by the Government, his

evidence failed to establish irrationality. First, as White

stipulated, he was treated just as the majority of violating

cooperators in his own examples were treated; that is, that no

substantial assistance adjustment was proffered by the government

and they were not given further opportunities for cooperation.

Second, there is no case law supporting White’s proposition.2

Deterring criminal conduct is a rational governmental interest that
3White’s mere mention of race as a possible issue implicating

the “unconstitutional motive” test, and his contention that his

subpoenas could have revealed a disproportionate racial impact, are

wholly conclusory and without any evidentiary support.

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sufficiently supports the government’s refusal to make a

substantial assistance motion. See United States v. Butler, 272

F.3d 683, 687 (4th Cir. 2001). Moreover, “mere allegations of

unconstitutional motive on behalf of the prosecutor are not enough

to carry [the defendant’s] burden.” United States v. LeRose, 219

F.3d 335, 342 (4th Cir. 2000), and White has not provided evidence

sufficient to support his claim of governmental irrationality.3

We also find to be without merit White’s challenge to the

district court’s action in quashing White’s subpoenas, through

which he sought to obtain evidence that the Government’s refusal to

allow White a second opportunity to provide substantial assistance

was arbitrary. We review for abuse of discretion the denial of

requests for discovery. United States v. Fowler, 932 F.2d 306, 311

(4th Cir. 1991). To require productions, courts have required that

subpoenas cover (1) relevant evidentiary materials or documents;

(2) that are not otherwise procurable by exercise of due diligence;

(3) which the party cannot properly prepare for trial without; and

(4) which is not intended as a fishing expedition. United States

v. Nixon, 418 U.S. 683, 699-700 (1974).

As the district court recognized in quashing the

subpoenas, White stated on more than one occasion that the
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information he sought was publicly available. He admitted that the

purpose of the subpoenas was to save him time and money in

retrieving the desired information. Moreover, the record reflects

that the offices White subpoenaed did not keep the records he

sought in the format in which he sought them, and that they would

have had to devote the same financial and man-hour expenditures to

compile the information in the same fashion as White would have had

to do. Accordingly, White was unable to establish, under the Nixon

standards, that the information he sought was not otherwise

procurable by exercise of due diligence. Nixon, 418 U.S. at 699.

On these facts, we find no abuse of the district court’s discretion

in granting the Government’s motion to quash.

Nor do we find abuse of the district court’s discretion

in its denial of White’s motion to withdraw his guilty plea. See

United States v. Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000). A

defendant bears the burden of demonstrating that a “fair and just

reason” supports his request to withdraw his plea. United States

v. Moore, 931 F.2d 245, 248 (4th Cir. 1991). 

White received an adequate Fed. R. Crim. P. 11 hearing,

which creates a strong presumption that his guilty plea was final

and binding. United States v. Puckett, 61 F.3d 1092, 1099 (4th

Cir. 1995). White argues, however, that despite that his plea was

entered into knowingly and voluntarily, the Government’s refusal to

allow him a second chance at cooperating somehow vitiates the
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knowing and voluntary nature of his plea. It does not. Moreover,

there is no question that it was completely within the Government’s

discretion whether to move for a downward departure, Butler, 272

F.3d at 686, and it is clear that White understood the Government’s

sole discretion in all issues relating to cooperation and his pleaagreement obligation not to violate the law. White violated

numerous terms of both his plea agreement and his pretrial

service/bond requirements, violations to which he admits. There is

no case law supporting his position that the courts can force the

government to provide to a defendant a second chance at

cooperating, absent a finding that such refusal was based on an

unconstitutional motive such as race or religion, neither of which

have been established in this case. Plus, White does not claim he

was innocent of the charges on which the plea agreement was based,

nor does he claim that he was subject to incompetent counsel during

the relevant proceedings. See Moore, 931 F.2d at 248. Contrary to

White’s claim, the record amply reflects that the district court

thoroughly considered White’s claim of unfairness and unjustness,

in holding him to his plea. White has not established a fair and

just reason to withdraw his guilty plea, and there is no abuse of

the district court’s discretion in denying his motion to do so.

Finally, we decline White’s invitation to supplement the standard

set forth by this court in Moore. 
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Accordingly, we affirm White’s sentence. We dispense

with oral argument because the facts and legal contentions are

adequately presented in the materials before the court and argument

would not aid the decisional process.

AFFIRMED